反垄断监管与事前监管——互联网平台监管模式的二元建构

Antitrust and Ex Ante Regulation——The Dual Construction of Regulation Pattern of Digital Platform

反垄断监管是一种典型的事后监管,表现为禁止性规范为主的立法模式、合理原则为主的分析模式和消极性义务为主的救济措施,应用于平台监管中存在滞后性、威慑效果不佳等不足,反垄断法内部变革举措的实际效果也较为有限。相较反垄断监管的事后属性,事前监管通过创设积极性法律义务,实现对垄断结构引致不可逆损害的风险预防。为避免“假阳性”错误,引入事前监管须证明细分市场存在高而持续性的进入壁垒、欠缺有效竞争的动态趋势、事前监管收益大于成本三个累积性标准。平台事前监管的总体目标是推动市场从封闭到开放的回归,监管主体上成立专门事前监管机构并且采取合作制监管架构,监管对象的选取遵循“相关市场分析+显著市场力量确定”的基本框架,监管措施包括服务互操作、开放特定数据、平等对待不同主体提供的服务等。与反垄断监管的衔接包括建立分工监管的机制和可反驳的违法推定规则。

Antitrust is a typical ex-post regulation tool, which is characterized by a legislative model based on prohibitive norms, an analytical model based on the principle of reason, and a remedy based on negative obligations. The application of antitrust law to the regulation of platforms suffers from the shortcomings of lag and poor deterrent effect, and the practical effect of internal antitrust reform initiatives is also limited. In contrast to the ex-post nature of antitrust regulation, ex-ante regulation prevents the risk of irreversible harm caused by monopolistic structures by creating positive legal obligations. To avoid false positive errors, the introduction of ex-ante regulation must ensure the market exhibits the three cumulative criteria, which are the presence of high and non-transitory barriers to entry in the market segment, the absence of a dynamic trend towards effective competition, and the benefits of ex-ante regulation outweighing the costs. The overall objective of ex-ante regulation of platforms is to promote the return of the market from closed to open, with the establishment of a special ex-ante regulator and the adoption of a cooperative regulatory structure, and the selection of regulatory targets following the basic framework of Market Analysis + Assessment of significant market power. The regulatory measures include service interoperability, open access to specific data, and equal treatment of services provided by different entities. The interface with antitrust regulation includes the establishment of a division of labor and a rebuttable presumption of illegality.